Stations Fight Back

Broadcasters seek DTV flexibility


In June, the Federal Communications Commission handed 71 television stations warning letters for missing their digital TV deadlines. But some stations are fighting back, urging leniency for smaller broadcasters and attacking the process that led to the commission's plans to punish DTV laggards.

Most stations "admonished" by the FCC have filed progress reports indicating they will be on the air by the next deadline, Dec. 1. Even Trinity Broadcasting Network, which led the industry with about 20 warning letters, said it has ordered equipment and will get on the air on time in nearly every case.

At the same time, broadcast companies big and small say that they received their DTV construction permits so recently, and the buildout is so complex, that they need the extra months. They don't need threats of fines and worse in the meantime, they say. Zoning delays, busted business deals and financial hardship call for a little more flexibility than the commission has indicated it will give, the thinking goes.

"There are stations in smaller markets that are marginal to begin with, and the problems with the economy have not helped any," said Kathryn Schmeltzer, an attorney whose broadcast clients include small players as well as Sinclair Broadcast Group, which owns or is closely connected with 63 stations. "They'll probably be able to do it, but they need more time."

The NAB and the Association for Maximum Service Television have pleaded for leniency for smaller stations. Big groups, meanwhile, are building aggressively at great expense and through heroic efforts of their engineers, Schmeltzer said. But even the best efforts encounter problems.

Some stations find that existing towers won't support high-power digital antennas in addition to existing analog facilities, so new towers have to be built. Communities tend not to want enormous new towers, so broadcasters have to work together to create group towers. Stations meanwhile are bought and sold, throwing all deals into question.

"So it's just a process that takes a while," Schmeltzer said. "It can't be done overnight."

Sinclair also attacks the FCC's November 2001 decision allowing stations to meet the May 2002 DTV deadline with low-power broadcasts. Pushing for a faster, lower-power buildout with minimal power may bring short-term benefit for DTV, but the resulting delay of full-power buildout is "bad for the public in the long run," the company argues.

Broadcasters aren't taking any chances, and are fighting the FCC's sanctions even as they're imposed. The new rules allow a maximum of two six-month extensions, with regular progress reports, with sanctions up to DTV license revocation for the worst violators.

But the stations argue that the FCC proposed the penalties, asked for comment, and then imposed those very penalties just weeks later.

"Normally, the commission doesn't prejudge its own rulemakings, and I think they've prejudged by actually applying the series of sanctions they've proposed," Schmeltzer said. "It's kind of meaningless to ask for comment if you know you're going to go forward with what you've proposed."

Others use stronger language. The New Life Evangelistic Center, a religious broadcaster with two stations in Missouri, said the commission behaves like the "schoolyard bully."

"For the commission, broadcasters are the most convenient target and the one in the crosshairs for implementation of the 'build it and they will come' philosophy driving digital conversion," New Life's attorney wrote.

Colby M. May, who represents Trinity, said the commission's administrative gun-jumping violates the stations' right to due process, is arbitrary, unfair, "manifestly unjust" and implements penalties without adequate warning. He said the FCC's position shows it is serious about speeding the digital buildout.

"My own sense is that the [FCC] has pushed everyone real hard to make sure they're on the air by Dec. 1," he said.

The FCC is expected to issue an order on its schedule of sanctions by winter.